King v Camden Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	King v Camden Council [2024] NSWPIC 642
APPLICANT:	Robyn King
RESPONDENT:	Camden Council
MEMBER:	Brett Batchelor
DATE OF DECISION:	18 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury; injury not in issue; respondent relied on defences under section 11A in respect of provision of employment benefits, transfer and discipline; the applicant transferred to working part-time under a trial Flexible Work Arrangement (FWA) which she believed would be made permanent; after two extensions thereof, the applicant was directed to return to full-time employment; the applicant submitted that the respondent could not rely on any of the three section 11A categories; Held – the respondent could rely on these categories; the respondent put in issue factual matters alleged by the applicant in respect of the actions of its employees in communicating cessation of the FWA to the applicant; detailed examination of the evidence in respect of the disputed factual matters; the respondent’s actions with respect to transfer and discipline were reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered psychological injury arising out of or in the course of her employment with the respondent deemed to have occurred on 11 April 2022. 2. The injury was caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and discipline. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Robyn King (the applicant/Ms King) seeks weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of her employment as an Injury Management and Wellbeing Officer with Camden Council (the respondent/the Council), deemed to have occurred on 11 April 2022.
Ms King describes her injury as having been sustained as a result of interpersonal conflict with employees including Shelby Lee, now Shelby Eady and hereinafter referred to as Shelby, and Samantha Sharkey (Ms Sharkey).
The applicant commenced employment with the respondent on 21 November 2011 as a Workers Compensation and Work Health and Safety Officer. In 2020 her role was changed to Injury Management and Wellbeing Officer.
In June 2020 Ms King, at her request, commenced working under a Flexible Work Arrangement (FWA), pursuant to which she worked three days a week. This was approved by a director Tim Butler, as a transition to retirement, for a trial arrangement for six months. There was no written agreement in relation to the arrangement. Mr Butler left the Council in late 2020. Under this FWA the applicant took the two days that she was not working from her long service leave and annual leave.
In January 2021 Tina Hay was working in the position of Acting Chief People Officer and wrote to the applicant on 25 January 2021 advising her of the Council’s agreement to continue the arrangement for six months, and requesting her to sign and return a document attached to the letter outlining the proposed working arrangements. The applicant did this. The document stipulated that Ms King would be working Tuesday, Wednesday and Thursday, commencing from 18 January 2021. Ms King then engaged a support person, Lorraine Chensee from a labour hire firm, to work in her position for the two days a week that she was not working.
On 1 June 2021 the applicant emailed Tina Hay formally requesting that consideration be given to the reduction of her work to three days a week be made permanent. At the suggestion of Tina Hay, from around June or July 2021 the applicant instead of taking two days a week paid leave, took one day a week as paid leave and one day a week as unpaid leave.
In October 2021 the applicant received from Tina Hay a letter dated 19 July 2021 confirming a continuation of the FWA up to 22 October 2022, with a review of the new working arrangement prior to that date. Ms King digitally signed this letter on 20 October 2021.
Shelby commenced with the respondent as Manager, People, Learning and Culture in early October 2021. On 20 October Ms King spoke with Shelby by phone call, during which, according to Ms King, Shelby declined to discuss the FWA and hung up on the call.
On 3 November 2021 the applicant received a letter from Shelby via email in respect of the FWA advising of the outcome of a review of the arrangement and that the Council could not accommodate the request for flexibility in the form of continuing the applicant’s FWA on a permanent basis. Ms King was directed to return to her full-time role from 1 December 2021.
The applicant responded to this letter on 3 November 2021 disputing that the Council had lawfully ceased the FWA in the absence of proper consultation, raising a dispute in accordance with Clause 39 of the Local Government State Award 2020, and requesting a meeting with Shelby and Ms Sharkey. Ms King says that she also wrote a letter to the General Manager of the Council, Ron Moore, to which no response was received.
On 10 November 2021 the applicant met with Shelby and Ms Sharkey, accompanied by her daughter-in law, Veronica King as a support person. No resolution of the applicant’s request was forthcoming from the meeting.
The applicant received a letter dated 24 November 2021 from Ron Moore advising that, after a review had been conducted, the determination of the Council was that it could not accommodate the request for flexibility in the form of extending the part-time working arrangement.
On 30 November 2021, assisted by the United Services Union (USU), the applicant submitted a grievance to the Council. The applicant continued to work in accordance with the FWA.
On 2 December 2021 the applicant received an email from Shelby advising that, from the Council’s perspective, the FWA had been dealt with and that the Council did not intend to revisit it. A further meeting was proposed for 7 December 2021.
The applicant attended this meeting with Shelby, during which the applicant was advised that the FWA was not going to continue.
The applicant, with the assistance of the USU, lodged her grievance with the Industrial Relations Commission (IRC).
The applicant received from Shelby a letter dated 22 February 2022 containing an offer to transfer from the role of Injury Management and Wellbeing Officer to Injury Management and Wellbeing Support Officer, as a part-time appointment for 12 months duration until 14 March 2023 at a reduced rate of pay. Ms King did not accept this offer.
In late March or early April the applicant received a letter dated 16 March 2021 from Shelby noting the non-acceptance of the offer of the part-time position of Injury Management and Wellbeing Support Officer, and directing Ms King to return to her full-time position of Injury Management and Wellbeing Co-ordinator effective from Monday, 28 March 2022. The Council noted in that letter that failure to comply may warrant disciplinary action being taken against Ms King.
The applicant consulted her general practitioner, Dr Muzammel, on 11 April 2022 and obtained a Certificate of Capacity (COC) certifying no capacity for any work from 11 April 2022 to 9 May 2022. This was provided to the Council. The applicant says that she has been off work on stress leave since 11 April 2022.
The applicant’s proceedings in the IRC proceeded to hearing on 5 May 2022 by way of a teleconference. The outcome was a settlement agreement involving the cessation of Ms King’s employment with the Council and a monetary payment. The terms of the agreement were confidential.
The applicant lodged a claim for workers compensation, in response to which the Council’s insurer, StateCover Mutual, issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 29 June 2022 containing a denial of liability for the claim.[1] In that notice the Council relied upon ss 11A, 33, and 60 of the 1987 Act, alleging that:
(a) the applicant’s alleged psychological injury had been wholly or predominantly caused by reasonable actions taken by the Council or proposed to be taken with respect to ‘the provision of employment benefits to workers’, and/or ‘transfer’ and/or ‘proposed discipline’, which constituted a total defence to a psychological injury claim;
(b)    in the alternative the applicant did not suffer any incapacity as a result of a compensable psychological injury;
(c)    in the alternative the applicant any claimed medical treatment was not reasonably necessary as a result of a compensable psychological injury, and that
(d)    pursuant to grounds of dispute (a) and (b) above, the applicant has not suffered a compensable psychological injury.
[1] Application to Resolve a Dispute (ARD) p 57.
In the notice the Council disputed allegations of bullying and harassment by the applicant’s manager and director.
The denial of liability by the respondent was confirmed in subsequent notices issued by StateCover Mutual under s 287A of the 1998 Act dated 15 March 2022[2] and 22 March 2024.[3]
[2] ARD p 77.
[3] ARD p 88.
The current proceeding were commenced in the Personal Injury Commission (the Commission) on 24 June 2022 and the subject of a preliminary conference between the parties on 23 July 2024 following which the following notations were included in a direction issued on that day:
“The Commission notes:
1.     The parties agree that the pre-injury average weekly earnings are $1,864.
2.     The applicant agrees to attend the examination by Dr Suman on 26 July 2024.
3.     The parties will consider if documents regarding the previous industrial proceedings and deed of release are relevant to these proceedings.
4.     The respondent may make an application to cross-examine.
5.     The matters in dispute are as follows:
a.Whether the applicant suffered a psychological injury on 11 April 2022 (deemed) – s 4(b)(i) of the 1987 Act;
b.If so, whether the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to provision of employment benefits, transfer and/or proposed discipline- s 11A of the 1987 Act;
c.The extent and quantification of the applicant’s entitlement to weekly compensation – ss 36 and 37 of the 1987 Act
d.Whether the applicant is entitled to the payment of medical expenses – s 60 of the 1987 Act.”
Directions were made for a direction for production to be issued to Dr Muzzammel [sic, Muzammel], for the extension of the time for the applicant to respond to a notice for production issued to her, for the lodgement of further statement evidence by the parties, and for conciliation/arbitration to occur on 18 September 2024.

ISSUES FOR DETERMINATION

Prior to the receipt of written submissions the parties agreed that the following issues remained in dispute:
(a)    the applicant’s pre-injury average weekly earnings (PIAWE), as to which see reference at [27] hereunder;
(b)    whether the applicant suffered a psychological injury on 11 April 2022 (deemed) – s 4(b)(i) of the 1987 Act;
(c)    if so, whether the applicant’s primary psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to provision of employment benefits, transfer and/or proposed discipline- s 11A of the 1987 Act;
(d)    the extent and quantification of the applicant’s entitlement to weekly compensation – ss 36 and 37 of the 1987 Act, and
(e) whether the applicant is entitled to the payment of medical expenses – s 60 of the 1987 Act.

Matters not previously notified

Notwithstanding agreement between the parties at the preliminary conference that the applicant’s PIAWE were $1,864, the respondent put PIAWE in issue during conciliation on 18 September 2024. This is reflected in the directions issued on 18 September 2024 set out hereunder.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration conference conducted via visual link on 18 September 2024. Mr Adhikary appeared for the applicant briefed by Ms Pearce. The applicant attended separately. Mr Jones appeared for the respondent briefed by Mr Van der Hout. Representatives of the respondent and StateCover Mutual also attended.
The matter did not resolve following extensive conciliation, and the following directions were issued:
“The Commission directs:
1.     The respondent is to lodge and serve by 27 September 2024 evidence in support of what it asserts is the applicant’s pre injury average weekly earnings (PIAWE).
2.     The respondent is to lodge and serve by 9 October 2024 written submissions on
(a)the applicant’s PIAWE, and
(b)its defence of the applicant’s claim.
3.     The applicant is to lodge and serve by 18 October 2024 written submissions in reply.
4.     The respondent is to lodge and serve by 25 October 2024 any further submissions on which it seeks to rely.
5.     At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”
These submissions have been received and are summarised hereunder.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) lodged by the applicant on 12 August 2024 and attachments;
(d)    AALD lodged by the applicant on10 September 2024 and attached documents;
(e)    AALD lodged by the respondent on 13 September 2024 and attached documents;
(f)    clinical notes of the Oran Park Medical Centre lodged in response to a direction for production issued to it, and
(g)    AALD lodged by the respondent on 27 September 2024 and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

SUBMISSIONS

Respondent

The respondent’s submissions dated 11 October 2024 (the respondent’s submissions) are summarised as follows.
The respondent concedes that certain events did occur at work in the sense described by Roche DP from [52] in Attorney General’s Department v K.[4] The respondent submits however that it will be necessary for the Commission to make findings about some events, not only so that it can be satisfied that it was a real event given the starkly conflicting accounts thereof, but also because it will inform the defence pursuant to s 11A of the 1987 Act.
[4] [2010] NSWWCCPD 76 (AG v K).
The respondent then provides a chronology which it submits details what occurred, with attention drawn to any factual matters in disputed by putting such matters in bold. The respondent submits that focus will then shift to resolving the conflict.
The respondent submits that, informed by what is contained in the chronology, the relevant real events all concerned the review and continuation of the applicant’s FWA, albeit that the conduct took different forms, such as correspondence and meetings.
The disputed relevant factual matters according to the respondent are:
(a)    what Shelby did on commencement of her employment with the respondent in early October 2021. The respondent submits that the applicant cannot state in truth all that Shelby did, only what she perceived Shelby to do. To the extent that there is any factual contest about what Shelby did on starting, her evidence should be preferred;
(b)    there is a factual contest about what occurred at an initial meeting between the applicant and Shelby on 20 October 2021;
(c)    in respect of a letter sent by the applicant to Shelby dated 3 November 2021,[5] the respondent disputes that it was not permitted to take the approach that it did in respect of the FWA, asserting that it was only temporary and not a permanent change in the applicant’s work. It was always going to be reviewed. In any event, there was consultation about the issue (that is, cessation of the FWA);
(d)    there is a factual issue about what occurred at the meeting between the applicant and Shelby on 10 November 2021, also attended by Ms Sharkey, and the applicant’s daughter-in law, Veronica King, as a support person, and
(e)    there is a factual dispute about what occurred at the meeting on 7 December 2021 between the applicant and Shelby, initiated by Shelby.
[5] ARD p 102.
The respondent submits that there is also some peripheral evidence which is irrelevant to the issues to be determined, which can be ignored by the Commission. This evidence includes:
(a)    statement of Noleen Jessup, undated,[6] as she speculates about certain matters, and in any event she cannot give evidence about the relevant events from October 2021 having ceased to work for the respondent before then. Whatever may have been her perspective about events in early 2021, matters had advanced since then;
(b)    statement of Tim Butler dated 3 March 2022.[7] The relevant events are from October 2021 which is long after Mr Butler left the employ of the respondent. His perception about how the FWA was working in late 2020/2021 is irrelevant;
(c)    the applicant’s performance review.[8] The FWA did not continue for operational and resource reasons. The applicant’s performance did not contribute to the decision, and no-one has suggested as much, and
(d)    the statement of Vera Suli dated 23 August 2022.[9] No medical expert cites what is referred to therein (how her workers compensation claim was handled) as being a precipitating event for the onset of the applicant’s psychological injury. In any event the perceptions of Ms Suli about how her claim was handled is immaterial. It was properly for the respondent to decide how and by whom such claim was managed.
[6] ARD p 27.
[7] ARD p 29.
[8] ARD p 32.
[9] ARD p 49.
Reference will be made to the relevant factual matters disputed by the parties in the Findings and Reasons hereunder.
The respondent makes submissions on the nature of the real events, having regard to the categories it relies on as a defence under s 11A of the 1987 Act. The respondent refers to:
(a) provision of employment benefits: the respondent submits that the real events surrounding the accommodation sought by the applicant for her FWA to continue falls directly within this category, both directly being an employment benefit, but even on the extended notion of being ‘with respect to’ any such benefits. The respondent submits that the FWA was a benefit in that it afforded the applicant more flexibility in her work arrangements, something which was beyond the normal situation;
(b) transfer: the respondent submits that the different nature of the work the applicant would perform by doing full-time hours was, effectively, a transfer. The nature of the responsibilities would also change. That different roles were suggested during the course of the applicant’s employment also reinforces the transfer element of the process whereby her FWA was being considered. In support of the submission the respondent relies on what was decided in Manly Pacific International Hotel v Doyle,[10] and
(c) discipline: the respondent submits that the mooted reprimand of the applicant, although it never materialised, is still captured by s 11A, having regard to the fact that it was ‘proposed action’ by the respondent. Notwithstanding this action occurred in the context of other arguable s 11A categories, this does not obviate that fact that it is also discipline.
[10] [1999] NSWCA 465 (Doyle).

The respondent considers the relevant medical evidence of Dr Dunn, consultant psychiatrist, Mr Och, psychologist, Dr Muzammel, general practitioner, Dr Tsang, psychiatrist, and Dr Suman, forensic psychiatrist.
The respondent submits that, as noted in Doyle, whether the whole or predominant cause of a worker’s psychological injury for the purposes of s 11A is a question of fact and degree which involves consideration of all the factors which produce the worker’s condition. The respondent submits that the Commission can be comfortably satisfied that is the case in the current matter because it accords with the applicant’s own reporting but also the medical evidence.
The respondent notes the applicable principles in respect of reasonable conduct, and considers the concept of ‘reasonable action’, noting that the Commission is required to have regard not only to the end result, but the manner is which it was effected. The question of whether the action is reasonable is one of fact involving an objective test and not a matter of law. Relevant authorities are referred to. The respondent submits that with reference to the principles discussed, its conduct was entirely reasonable.
The respondent makes submissions on the respondent’s work capacity, submitting that according to the best opinion of Dr Suman, the Commission would be satisfied that:
(a)    there are real jobs, in the sense discussed in Wollongong Nursing Home Pty Ltd v Dewar,[11] available which the applicant can perform;
(b)    the applicant has a current work capacity, having regard to the definitions of current work capacity in cl 9(1) Sch 3 of the 1987 Act and s 32A of the 1987 Act, and
(c)    the applicant has been fit for work in the identified suitable jobs two days a week since August or October 2022.
[11] [2014] NSWWCCPD 55 (Dewar).
The respondent makes submissions on the applicant’s PIAWE, noting that the figure of $1,864 previously agreed upon by the parties was based on the applicant having been working full-time, that is, five days per week or 35 hours a week. The applicant commenced working part-time hours under the FWA from June 2020 until 30 November 2021, and continued thereafter through until she ceased work altogether on 11 April 2022.
The respondent relies upon the legislative regime set out in:
(a) cl 8C of the Workers Compensation Regulation 2016;
(b)    cl 2(1) of Sch 3 of the 1987 Act;
(c)    cl 6(1) of Sch 3 of the 1987 Act, and
(d)    cl 6(2) of the 1987 Act.
The respondent submits that the applicant’s PIAWE are $1,118.39, being the earnings she was paid for the three days worked as a result of the changed work arrangements. That figure is exclusive of leave as it was not being paid by way of income.
This approach to the calculation of PIAWE is consistent with the decision in Wake v State Emergency Services,[12] in which a period of long service leave half pay was excluded from the ‘relevant earnings period’, because the long service leave half pay period ended and the worker resumed work on full pay before the injury. Returning to full-time hours was accepted to be a change in the employment arrangements of an ongoing nature which resulted in a financially material change to the earnings of that worker. (Emphasis in submissions.)
[12] [2022] NSWPIC 50 (Wake).
The respondent submits that, consistent with the decision in Wake, the reduction in the applicant’s work arrangements to three days a week, which she intended to continue, materially changed her earnings. The change was from the full-time PIAWE ($1,864) to the three days per week ($1,118.39). this represented a change in the employment arrangements of ‘an ongoing nature’ because the applicant never allowed this arrangement to change back, and this arrangement persisted up until the injury, and incapacity manifested (which is the only relevant period).
The respondent submits that the applicant is not totally incapacitated for work, and is not incapacitated for work as a result of a compensable injury. If that is rejected, any compensation pursuant to ss 36 and 37 of the 1987 Act should be calculated with reference to a PIAWE of $1,118.39 as indexed from time to time.
The respondent notes that if its defence under s 11A of the 1987 Act fails, given that no expert suggests the treatment received by the applicant was not reasonably necessary, there would be an award for the applicant claimed pursuant to s 60 of the 1987 Act.
The respondent submits that the defence in s 11A of the 1987 Act is made out with the result that there should be an award for the respondent.

Applicant

The applicant’s submissions dated 18 October 2024 (the applicant’s submissions) are summarised as follows.
The applicant notes that no dispute is pressed pertaining to s 4 of the 1987 Act. The issues for determination are the respondent’s dispute pursuant to s 11A of the 1987 Act, the applicant’s entitlement to weekly compensation, and expenses pursuant to s 60 of the 1987 Act.
The applicant submits that the respondent’s s 11A defence is misconceived both factually and legally, and that the Commission ought to find that the section is not applicable in the circumstances of the matter. In the alternative, the Commission ought to find that the respondent’s actions were not reasonable.
The applicant submits that the Commission ought to find that she has an entitlement to weekly compensation and treatment expenses.
The applicant notes that the respondent relies on the following concepts in respect of its defence of the applicant’s claim pursuant to s 11A of the 1987 Act:
(a)    provision of employment benefits;
(b)    transfer, and
(c)    discipline.
In respect of the provision of employment benefits, the applicant relies on what is said in Rock Logistics Pty Ltd v Chelin,[13] ACR v Grace Worldwide Pty Ltd,[14] and Sweet Art Special Events Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors.[15] The applicant submits that these cases clearly, and contrary to the respondent’s submissions, demonstrate that this concept is inapplicable to the subject matter of the current case.
[13] [2024] NSWPICPD 39 (Chelin) at [177].
[14] [2021] NSWPICPD 44 at [276].
[15] [2023] NSWPIC 525 at [805]-[811].
The applicant submits that change to the applicant’s working hours was not a benefit the applicant was receiving and/or sought to receive additional (emphasis in submissions) to her contractual entitlements, or an additional benefit such as allowing the applicant to work from home. The applicant submits that the issues in the current matter simply pertain to an agreement with respect to the days and hours she was to work, from her employer’s premises, so as to satisfy her contract of employment, or to alter her contract of employment. There was no additional benefit, as required. Therefore, the provision of employment benefits is not applicable to the current matter.
The applicant submits that the concept of transfer is equally inapplicable because, consistent with Doyle, this is not a matter wherein the whole or predominant cause of her injury was a change to her position or role.
In respect of discipline, the applicant submits that this concept is also inapplicable because, even on the extended definition noted in Kushwaha v Queanbeyan City Council,[16] this case does not involve disciplinary action that was taken, or disciplinary action that was proposed to be taken.
[16] [2002] NSWCC 25 (Kushwaha).
The applicant submits that if the Commission does not accept the foregoing submissions, the actions of the respondent were not reasonable. The applicant submits that the evidence, recounted in her submissions, demonstrates that the respondent:
(a)    mistreated her;
(b)    did not have regard to her concerns when it made her its decisions or determinations;
(c)    denied her procedural fairness;
(d)    ambushed her;
(e)    withheld information from her even though she sought same, and
(f)    provided no actual basis to withdraw the flexible work arrangement.
The applicant submits that the respondent concedes that it purported to consider various matters that were relevant to its business operations, but that this does not assist the respondent in its defence. Rather, it emphasises “the not reasonableness” [sic] of the respondent’s actions because it demonstrates that its actions were based on information to which she (the applicant) was not privy.
The applicant notes what was said by Basten JA at [10] in Northern NSW Local Health District v Heggie.[17] The passages and decisions to which the respondent refers in its written submissions were clearly not objective, and ought to have been.
[17] [2013] NSWCA 255 (Heggie).
The applicant submits that the respondent’s actions were based on considerations it had taken, to which she was not privy. These actions were predicated in its subjective considerations and not matters that she was able to address at the time. Therefore, they cannot be considered reasonable, or as part of the actions when determining the dispute pursuant to s 11A.
The applicant also refers to the remarks of Sackville AJA at [59(iv)] in Heggie, and also to Geraghty J’s remarks in Irwin v Director-General of School Education[18] on the test of reasonableness.
[18] NSWCC No 14068/97, 18 June 1998, unreported.
The applicant submits that the subjective basis upon which the respondent formed its determinations were, objectively, unfair.
The applicant summarises in detail the evidence appearing from her statements, which she says demonstrates the unreasonableness of the respondent’s conduct because:
(a)    the respondent withheld information from the applicant, and continued to do this;
(b)    the respondent behaved inappropriately;
(c)    she (the applicant) continued to be ambushed by the respondent’s determinations regarding the FWA. She did not know why the decision was made even though she had sought in writing, and in person, information pertaining to same, and
(d)    the respondent was dismissive of the applicant’s concerns.
The applicant submits that the respondent’s “chronology” is not such, but rather submissions, which demonstrate that its conduct was not objectively reasonable. This is because the respondent has firstly, conceded Shelby did not actually provide the applicant with reasons for the change to the FWA, and the respondent’s reasons for making its determinations were subjective.
Secondly, the applicant submits that the reference to Sparke Helmore Lawyers “is further demonstrative on not-reasonableness” [sic]. If lawyers had been involved, the applicant submits that the respondent would ensure the reasons for a significant determination to end the FWA would have been provided to her, yet they were not.
The applicant thirdly submits that she was not heard, nor given the opportunity to be heard, prior to the determinations being made. She was told of the decision after it had been made. The applicant submits that the respondent failed to grasp the fact that it needs to prove that its actions were reasonable, not that its actions were not-unreasonable. This also demonstrates that the respondent’s defence is misconceived, and it is seeking to delegate responsibility to other persons for its failure and denial of procedural fairness.
The applicant notes that the respondent’s reference to the involvement of lawyers ought to be rejected, noting that such records were not lodged.
The applicant submits that, having regard to the evidence summarised in respect of earlier events, her evidence and that of her daughter-in law Veronica King, ought to be preferred to that of Shelby and Ms Sharkey.
The applicant submits that the attack on Veronica King is misconceived, noting that a person can clearly provide an opinion pertaining to his or her perception of other people. The applicant refers to her perception, and that of multiple other people, as evidenced by the Grievances lodged by then pertaining to Shelby.
The applicant further summarises her evidence as to what occurred following the meeting with Shelby and Ms Lee, attended by Veronica King, on 10 November 2021, leading up to the letter of 16 March 2022 from Shelby directing her to return to work in her position of Injury Management and Wellbeing Co-ordinator effective from Monday 28 March 2022,[19] her inability to work any longer, and absence from work on stress leave from 11 April 2022.
[19] ARD p 130.
In respect of the PIAWE, the applicant concedes that is calculated by reference to her actual earnings and accepts the respondent’s calculations of $1,118.39.
The applicant submits that the effects of the accepted psychological injury continue and that she has been rendered totally incapacitated for employment as a result of the subject injury. If this submission is not accepted, then any finding in respect of incapacity to undertake suitable employment ought to be of a very limited nature only.
The applicant submits that, notwithstanding the certification of some capacity for employment, noting what is said in Dewar, this is not sufficient to reduce her entitlement to compensation, noting real jobs need to be identified.
The applicant refers to what Wood DP stated in Westpac Banking Corporation v Mani,[20] submitting that there is no evidence that she could perform, or indeed that a vocation existed, without her needing retraining, coaching or guidance before she could commence such vocation.
[20] [2019] NSWWCCPD 41 at [177].
The applicant submits that the respondent has not provided her with rehabilitation or job seeking services.
The applicant reviews the medical and lay evidence (including surveillance) in respect of her incapacity, and concludes that there is no basis to suggest that her condition has resolved.
In conclusion, the applicant submits that the respondent’s s 11A defence ought to fail and that she ought to be awarded compensation in the form of weekly benefits and s 60 expenses.

Respondent submission in reply

The respondent maintains that each category of the s 11A defences properly applies.
The respondent submits that the FWA was ‘additional’ to the applicant’s usual work in that it was, to adopt the language at [177] in Chelin, an ‘additional entitlement over and above simple reward for work done’ (emphasis in submissions). The FWA was not the usual one for employees, and fell outside the scope of the applicant’s originally contracted role. Furthermore, the respondent needed to make additional arrangements to accommodate the FWA, including the hiring of additional staff at an increased cost.
The respondent relies on what Member Isaksen said at [56] in Lancaster v City of Sydney.[21] That was a case in which the applicant was seeking a benefit not generally available to other workers, namely, being allowed to work while not vaccinated against the Covid 19 virus.
[21] [2022] NSWPIC 484.
The respondent submits that in the current matter the applicant was seeking a benefit not generally available to other workers, namely, a flexible work arrangement that allowed her to work 60% of her contracted hours on an ongoing basis, not merely a temporary basis.
In refuting what the applicant submits at [61] above, the respondent submits that whether the conduct was the whole or predominant cause of an injury is separate from ascertaining whether the conduct falls in such a category. The respondent says it does, consistent with the authorities cited in its primary submissions.
The respondent notes that the applicant does not articulate with any precision why the conduct does not fall within the definition of discipline, and says nothing about the mooted reprimand of the applicant. That the reprimand did not occur is immaterial, because the s 11A defence also applies to ‘proposed’ actions with respect to the applicable categories. To reprimand someone is to discipline them.
In respect of the applicant’s submissions that the respondent’s actions were clearly not objective, and ought to have been, the respondent relies on the comments of Basten JA in Heggie, who explained that whether or not conduct was reasonable is to be assessed objectively, noting that the actual reasons of the decision maker were not critical. It is for the Commission to determine, objectively, whether the determinations were reasonable in all of the circumstances. The respondent maintains that they were.
The respondent submits that consideration of business operations is a relevant factor, contrary to the applicant’s assertion. To the extent that any determination was based on matters about which the applicant did not know, does not render the decision unreasonable. There is no general principle that a decision of an employer can only be reasonable if the employee is provided with all the information which informs its decision. The respondent submits that its business operations could not continue to accommodate the applicant, and the desires of the applicant cannot reasonably be expected to trump those broader considerations.
The respondent addresses four specific points raised in the applicant’s submissions in respect of the meeting that occurred on 20 October 2021, namely:
(a)    interactions with other colleagues. It does not follow that Shelby’s interactions with one colleague will be the same as with another, and the lodging of a grievance does not prove that the conduct (complained of) occurred. Similarly, a single document, prepared by self-interested parties and without any evidence about the general circumstances forming the compliant, be given any weight in considering Shelby’s conduct more generally;
(b)    in respect of consistency of reporting, the respondent submits that Shelby has been consistent in her description of what occurred, and asks why should her evidence not then be preferred;
(c)    the same remarks in respect of consistency apply to the later meeting, and both Shelby and Ms Sharkey deny that the conduct was as described by the applicant, and
(d)    in respect of lack of information, the respondent submits that to equate a supposed lack of information being provided as evidence that certain conduct occurred is pure conjecture and does not follow as a matter of logic. The two are very separate.
The respondent submits that even if Shelby’s version of what occurred at the meeting of 20 October 2021 is not accepted, it was not this interaction that was the whole or predominant causer of the applicant’s injury.
The respondent addresses the applicant’s complaint that the letter she received from the applicant on 3 November 2021[22] in relation to the FWA was not reasonable. The respondent submits that the applicant’s compliant is without merit, and that there was a legitimate basis for the determination referred to in that letter.
[22] Set out at [52]-[53] of the applicant’s statement dated 12 January 2023, ARD pp 10-11.
The respondent submits that cl 41 of the former Local Government (State) Award does not apply to what occurred in this matter.
The respondent addresses the four reasons submitted by the applicant in support of her submissions that the respondent’s conduct was not reasonable, namely:
(a)    withholding information: the respondent submits that it was not reasonable to provide the applicant with the documentation/information given it was high level business information. The respondent submits that the essence of the material was communicated to the applicant, namely the business needs were incompatible with the ongoing FWA;
(b)    inappropriate behaviour: this is disputed by the respondent;
(c)    continued ambushing: the respondent submits that the applicant was given notice of meetings, matters were committed to writing for further consideration and the applicant was afforded the opportunity to provide feedback. No ambush occurred, and
(d)    dismissive of complaints: this is denied by the respondent. It was merely that the applicant’s request could not be accommodated. Alternative measures were devised by the respondent but they were dismissed, rejected or ignored by the applicant.
The respondent addresses the applicant’s submissions in respect of the meeting of 10 November 2021, noting that:
(a)    the absence of any documentation from Sparke Helmore is irrelevant, and that the involvement of that firm is material because it shows that the respondent sought advice about how to properly conduct the process and evidently followed it;
(b)    it was Veronica King who “concluded” the meeting, not “conducted” the meeting as erroneously stated in the respondent’s primary submissions. The respondent submits that if the applicant complains that more information should have been provided, this could not reasonably have been done as the applicant terminated the meeting;
(c)    the applicant’s perception is not relevant to the determination of reasonableness in the context of a s 11A defence;
(d)    there was no denial of procedural fairness in circumstances where the applicant terminated the meeting and all relevant information had been disclosed, including the reasons for the decision expressed. The applicant was given a further opportunity to respond, and in fact did, with the consideration of the FWA not finally concluded at that point in time, and
(e)    the applicant misunderstands the respondent’s submission in respect of the “usual rules of evidence”, noting that while such rules do not apply to proceedings in the Commission, that absence of such rules does not mean that evidence should merely be accepted.

The respondent addresses the applicant’s submissions as to what happened at the meeting between Shelby and the applicant on 7 December 2021, noting that there is a factual dispute about what occurred. The respondent submits that Shelby was well aware of the sensitive nature of the conversation, and would have taken steps to remain sensitive of it.
The respondent notes that the applicant takes issue with the new role offered to her. The consultative process in respect of this role was initiated by the respondent, and she failed to engage in it. The specific proposal was the alternative part-time role about which the applicant was consulted at the meeting on 7 December 2021, and the failure of the applicant to respond and engage with the respondent about this role explains why the prospect of disciplinary action was reasonably raised.
The respondent submits that the part-time role satisfied the applicant’s requirement for ongoing part-time, not fulltime work. The respondent was entitled to make this offer, irrespective of the status of the applicant’s grievance compliant. The respondent submits that if the applicant had acted reasonably, that offer could have resolved the applicant’s grievance or dispute.
In respect of work capacity, the respondent submits that real jobs have been identified in the Earning Capacity Assessment (ECA) report dared 7 November 2023. Whether such jobs are available is immaterial, having regard to the definition of ‘suitable employment’ in s 32A of the 1987 Act.
If the opinion of Dr Suman on the issue of the applicant’s work capacity is accepted, then it follows that the evidence of the applicant’s ability to earn in the ECA report would be accepted by the Commission.
In conclusion the respondent submits that there should be an award for the respondent in accordance with its defence under s 11A of the 1987 Act.

FINDINGS AND REASONS

Section 11A defences relied upon by the respondent

The respondent relies upon the following s 11A defences to the applicant’s claim:
(a)    provision of employment benefits;
(b)    transfer, and
(c)    discipline.
The applicant submits that this reliance is misconceived because these concepts do not apply in the present matter. She submits that the change to the applicant’s working hours was not a benefit she was receiving and/or sought to receive additional to her contractual entitlements, or an additional benefit such as allowing the applicant to work from home. The applicant relies upon what Deputy President Wood said in Chelin. At [177]:
“In any event, the threat to the respondent’s employment, which would result in the respondent having no income, cannot constitute the provision of an ‘employment benefit’. In my view, the concept denotes some form of additional entitlement over and above simple reward for work done, such as the employer’s discretion to allow the ability to work from home, or, as I determined in ACRv Grace Worldwide Pty Ltd, the provision of Government Job Keeper payments to employed workers.”
The applicant submits that the issues in the current matter simply pertain to an agreement with respect to the days and hours she was to work, from her employer’s premises so as to satisfy her contract of employment, or to alter her contract of employment. She submits that there was no additional benefit, as required.
The respondent notes what Acting Deputy President Candy said in ISS Property Services Pty Ltd v Milovanovic[23] that a reduction in working hours was action with respect to the provision of employment benefits, commenting that “with respect to” was sufficiently wide to encompass such a reduction. The respondent also refers to what was considered in depth by Arbitrator McManamey (as he then was) in Hosoglu v Australian Concert and Entertainment Security Pty Ltd.[24]
[23] [2009] NSWWCCPD 27.
[24] WCC 9517 – 2009, (12 March 2020)
I do not accept the applicant’s submission. In my view it was a benefit that the applicant received by being able to work under the FWA from June 2020 onwards. It was not part of her employment contract. The applicant sought the FWA, pursuant to which she worked three days a week, as part of her transition to retirement plan. The respondent agreed that the applicant would receive payment for the two days a week she was not working as paid leave, which enabled her to finish payment under a novated lease of a motor vehicle which was due to end in January 2021.[25]
[25] See applicant’s statement dated 12 January 2023 at [20]-[22] and [24]-[26], ARD p 6.
The respondent can rely on the provision of employment benefits as part of its defence under s 11A of the 1987 Act.
The applicant submits that the concept of ‘transfer’ is inapplicable to the her in the circumstances of this case, as it is not a matter wherein the whole or predominant cause of her injury was a change to her position or role.
The respondent submits that the different nature of the work that the applicant would perform by doing full-time hours in contrast to part-time hours was, effectively, a transfer. The nature of the responsibilities would also change, and that different roles were suggested during the course of the applicant’s employment also reinforces the transfer element of the process whereby her FWA was being considered.
It appears from the respondent’s submissions in reply that the respondent is referring here to the ‘transfer’ of the applicant from her full-time position to working three days a week under the FWA, which she did from June 2020.
In my view, it could also apply to the proposal by the respondent, in the letter from Shelby dated 22 February 2022, offering the applicant a transfer from the role of Injury Management and Wellbeing Officer to Injury Management and Wellbeing Support Officer, a part-time, direct appointment position.[26] That is a move from one position to another, and a position in which the nature of the responsibilities would change. The applicant did not respond to this offer, apart from the USU indicating to the respondent that Ms King would not be in a position to respond by the date set in the letter, 10 March 2022.
[26] Applicant’s statement dated 12 January 2023 at [116]-[117], ARD p 19.
In Doyle, Davies AJA said at [31] the following in respect of “transfer” in the context of s 11A of the 1987 Act when commenting upon a submission in that case as to what constituted transfer:
“In my opinion, that interpretation of the word ‘transfer’ was too narrow. The word is used in the employment context. As such, it encompasses a move from one position to another whether or not there is any change in location. In determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than a change in the place where the work is carried out.”
Fitzgerald JA said at [3] in that case, in agreeing with Davies ALA that in subs 11A(1):
“…‘transfer’ includes a move from one position to another, whether or not there is any change in location,…”
also said at [8] in respect of the worker Mr Doyle that:
“Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle's condition.”
Section 11A refers to reasonable action taken or proposed to be taken by or on behalf of the employer, inter alia, with respect to transfer. In this case the respondent was, on 22 February 2022, proposing a change in the applicant’s position to that of Injury Management and Wellbeing Support Officer, a part-time, direct appointment position. Whether or not that change was the whole or predominant cause of her psychological injury will be discussed hereunder. The respondent can however rely of the concept of transfer within the meaning of s 11A as part of its defence to the applicant’s claim.
In my view that respondent can also rely on the concept of discipline as part of its defence. In the letter from Shelby to the applicant dated 16 March 2022[27] the following penultimate paragraph appears:
“In these circumstances, Council directs you to return to full-time hours in your position of Injury Management & Wellbeing Co-ordinator effective from Monday, 28 March 2022. Council considers this to be a lawful and reasonable direction and notes that any failure to comply may warrant disciplinary action to be taken against you.” (emphasis in original)
[27] ARD p 130.
That is a threat of, admittedly possible, proposed disciplinary action against the applicant in the event of any failure to comply with the direction to return to full-time hours in the applicant’s substantive position.
The respondent refers to what Wood DP clarified in respect of discipline at [141] in Webb v State of New South Wales,[28] which includes the following reference to what was referred to by Neilson CCJ in Kushwaha “…as the narrow definition of discipline, chastisement, and actions implementing adverse consequences for inappropriate behaviour in the workplace will also be matters of discipline.”
[28] [2019] NSWWCCPD 50.
The respondent also notes what Sackville AJA stated at [59(i)] in Heggie that:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
In this case, the entire process involved in disciplinary action can be seen to include the threat of such possible action in the failure of the applicant to respond to, or accept, the offer of the part-time position offered in the letter of 22 February 2022 and to comply with what the respondent saw as a lawful and reasonable direction.
The applicant’s response to this threat is referred to at [127]-[130][29] of her statement dated 12 January 2023. She found it “very confronting and upsetting”, felt that she would not be able to work any longer. Ms King consulted Dr Muzammel on 11 April 2023 and obtained a Certificate of Capacity containing a certification of no current capacity for any work from that date until 9 May 2022.
[29] ARD p 21.
The reasonableness or otherwise of the respondent’s action in respect of discipline will be considered hereunder. I find that the respondent is entitled to rely on the concept of discipline in its defence of the applicant’s claim.

Factual issues

The disputed factual matters alleged by the respondent which it says, “will inform the s 11A defence”, are set out at [38] above.

Telephone call of 20 October 2021

The applicant says that a “catch-up” meeting with Shelby tool place, via telephone, on 20 October 2021.[30] Shelby believes that she had her first phone call with Ms King on 4 October 2021, and two brief meetings with her and Corey Eato[n] on 7 and 19 October 2021 during which there was discussion of the performance of the injury management and workers compensation function, and that immediate improvement of that function was required.[31] At [45] of her statement dated 16 May 2022, Shelby confirms the meetings she had with the applicant and Corey on 7 and 19 October 2021. At [13]-[22] of her statement of 16 May 2022, Shelby gives some background in respect of the Ms King’s FWA since January 2021, and [31] refers to an email she sent to Ms Sharkey following the meeting with Ms King on 20 October 2021. At [27]-[33] in her supplementary statement dated 20 April 2023, Shelby gives her version of what took place in the meeting on 20 October 2021.[32]
[30] Applicant’s statement dated 12 January 2023 at [41]-[50], ARD pp 9-10.
[31] Respondent’s statement dated 16 May 2022 at [12] and [23], Reply pp 23 and 24.
[32] Reply p 58.
The applicant says that prior to her phone call with Shelby on 20 October 2021, there were two earlier phone calls involving Shelby with Premium Strategies. The second of these calls included Corey, a representative of Premium Strategies.[33] Corey had confirmed that the rise in the premium that the Council was paying was due to a few recent workers compensation claims which were of significant monetary value. According to Ms King, Corey noted that the increase was not due to the performance of her or Lorraine, with whom Ms King was job sharing. Ms King does say that 4 October 2021 was a public holiday on which she was not working, and that she denies that any conversation involving Shelby took place on that day.[34]
[33] Applicant’s supplementary statement dated 12 January 2023 at [14], ARD p 25.
[34] Applicant’s supplementary statement dated 12 January 2023 at [10], ARD p 24.
Whatever took place up until 20 October 2021, there is no dispute as to the occurrence of a telephone call between Ms King and Shelby on that day. Shelby describes the call “…as part of our weekly catch ups, during which we discussed her longer term arrangements.”
Ms King asserts in her statement dated 12 January 2023 that that meeting, being the very first time she spoke one-on-one to Shelby, lasted around 10 minutes before Shelby said on two occasions that “I don’t want to talk about that”, referring to Ms King’s questions about the FWA, and that she would like it to be finalised as it had been going on for almost 18 months. Ms King says that Shelby’s “whole tone and demeanour changed”, and that Shelby hung up on the call after saying in a raised voice that she did not want to talk about the matter.
In her supplementary statement dated 12 January 2023, Ms King says at [16] that the conversation of 20 October 2021 only lasted a few minutes, and that the alleged discussion that Shelby had with her as documented in the email sent to Ms Sharkey is untrue and completely false.
Shelby denies that she ever abruptly hung up on the applicant during the phone call on 20 October 2020 or on any other phone call, noting that the first she heard of this allegation was when she was being interviewed by the investigator, Mr Cox, for her statement dated 16 May 2022. Shelby relies on the email she sent to Ms Sharkey following the meeting of 20 October 2021 in support of her version as to what took place at the meeting. That email confirms, at least, that Ms King raised an agenda item with regard to her long term arrangements, and that the issue had been “in play for 16 months and no issues.” The email itself is not in evidence, and Ms Sharkey does not refer to it in her evidence.
It is difficult to make a finding on exactly what took place during a telephone call when the two participants give diametrically opposed versions as to what was said, and the “demeanour” of one of the participants. Any perception of the demeanour of Shelby gained by Ms King can only have been from what was said and the volume and tone of voice used. This against a background of the evidence of Ms King that it was the very first time she had spoken one-on-one to Shelby.
Having regard to the evidence I have summarised and the email sent by Shelby to Ms Sharkey, I accept the evidence of Shelby as to what occurred from the beginning of October 2021 in respect of contact with the applicant up until the meeting of 20 October 2021, apart from, perhaps, a call on 4 October 2021. In the email to Ms Sharkey, Shelby refers to the telephone call of 20 October 2021 as part of her weekly catch ups with “Robyn” (Ms King). I think that the telephone call of 20 October 2021, during which Ms King discussed the FWA and how long it had been dragging on pending finalisation, was longer that the few minutes asserted by Ms King in her supplementary statement dated 12 January 2023.
As to Ms King’s alleged perception of Shelby’s demeanour, I do not draw any adverse inference as to the manner in which Shelby spoke to Ms King during the call of 20 October 2021. Shelby may have said that she did not wish to discuss the FWA raised by Ms King, having regard to the fact that it was still under consideration by the respondent at that time, but it would have been difficult for Ms King to properly judge Shelby’s demeanour from, according to her, the single one-on-one telephone contact she had with Shelby.

Applicant’s comment upon authority of Shelby to conduct review/engage consultants

The respondent submits that the applicant cannot state in truth all that Shelby did, only what she perceived Shelby to do. To the extent that there is any factual contest about what Shelby did on starting, the respondent submits that her evidence should be preferred.[35]
[35] Respondent’s submissions p 3.
The respondent refers to “The applicant’s radical theory about Ms Lee not having the authority to conduct review/engage consultants.”[36]
[36] Respondent’s submissions p 3.
At [13] of her supplementary statement dated 12 January 2023 Ms King states that she is unsure how Shelby, while acting in a temporary role, had the authority to source consultations to conduct a “…high level financial and human impact review of the respondent’s workers compensation claims.” It seems inferred in that evidence that Ms King is saying that she held “…concerns that the engagement of Premium Strategies was in breach of Council’s procurement policies and procedures.”
In her statement dated 16 May 2022 Shelby states relevantly at [3] and [8]:
“3. I am employed with Camden Council as the Manager, People, Learning and Culture and I have been working in this position since 5 October 2021.”
….
“8. In my role of Manager, People, Learning and Culture I manage People, Learning and Culture department and within that remit I look after payroll, learning and development, injury management and wellbeing, HR services, organisational development and the internal communication team. In total I have 6 direct reports, one of which included Robyn King.”
Shelby deals with this issue at [16]-[18] of her statement dated 20 April 2023.[37] She says that she did not need authority from Tina (Hay, who has provided a statement dated 15 September 2022[38]), Leanne-Lee or the applicant to reach out and engage Premium Strategies and that she did have authority to engage these consultants. There was no breach of procurement, as Premium Strategies did not actually charge the Council for its services in conducting the review.
[37] Reply pp 53-54.
[38] ARD p 30.
Tina Hay, who was Acting Manager People, Learning and Culture between November 2021 to September 2022, says in her statement that she did not personally have any issue with the applicant’s proposal to make the FWA permanent, but appreciated that the decision would be made by the new Manager, People Learning and Culture when engaged. She also says:
“I did not engage, approve or have any knowledge that Shelby Lee who also directly reported to me engaged an [sic] consultant to undertake a review of Robyn’s role. I do recall there was some discussion about a provider to undertake a review of the Council’s premium but I do not know if that progressed.”
I do not see that this apparent factual issue raised by the respondent is relevant to the issues that must be decided in respect of the respondent’s defence of the applicant’s claim in the proceedings. It was within the scope of Shelby’s duties to conduct the review of the applicant’s position, the FWA under Ms King was working at the time of her (Shelby’s) appointment to her role in October 2021, and the engagement of Premium Strategies.
What must be decided in if the action taken or proposed to be taken by the respondent with respect to provision of employment benefits, transfer, and discipline was reasonable. In respect of this endeavour, focus needs to be concentrated in particular on events from early October 2021 until March/April 2022, against a background of what occurred in respect of the FWA under which the applicant was working from June 2020.

Factual issue about what occurred at and leading up to the meeting 10 November 2021

This is the third issue raised by the respondent about which it asserts that there needs to be a finding of fact.
Following the telephone meeting between the applicant and Shelby, Ms King says that she did not have any contact with Shelby until 3 November 2021 when she received a letter from her via email in relation to the FWA. This letter indicated that the FWA could not be accommodated on a permanent basis and requested that Ms King return to her full-time role from 1 December 2021.

The relevant text of the letter is set out at [52]-[53] of the applicant’s statement dated 12 January 2023.[39]
[39] ARD pp 10-11.
Shelby states in the letter that a review of the FWA was conducted in relation to:
(a)    the current performance of the Injury Management and Wellbeing function within the “PLC” (People, Learning and Culture) branch;
(b)    the ongoing viability of additional costs incurred due to agency placement two days a week, and
(c)    the ongoing direction of the function on and the need to have a single point of contact in the role of Injury Management and Wellbeing Officer to drive change and improve performance in relation to injury management.
Shelby notes in the letter that the applicant’s request in respect of the FWA was reviewed in accordance with Cl 23 Flexibility for Work and Family Responsibilities of the Local Government State Award (2020) which relevantly states that the employer may refuse (a FWA) request only on reasonable business grounds including and not limited to:
(a)    that the new working arrangements requested by the employee would be too costly for the employer;
(b)    that there is no capacity to change the working arrangement of other employees to accommodate the new working arrangements requested by the employee;
(c)    that it would be impractical to change the working arrangement of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
(d)    that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity, and
(e)    that the new working arrangements requested by the employee would be likely to have significant negative impact on customer service.
Shelby then went on to state that having considered the matters noted above, the Council had determined that it could not accommodate the applicant’s request for flexibility in the form of extending her part time working arrangement on a permanent basis. The applicant was requested to return to her full-time role from 1 December 2021.
The applicant says that she felt “shocked and devastated” on receipt of this letter. She says that there had been no consultation with her regarding the FWA and was not involved in the respondent’s review of it. Ms King questions how Shelby could conduct a review without consultation with her. She also says that receipt of the letter was very upsetting because Shelby had not bothered to find out anything about her personal situation and circumstances, a significant part of which was taken up with caring for her seriously ill mother.
The applicant submits that the action in serving the letter dated 3 November 2021 on her was not reasonable because:
(a)    there was no actual basis provided for the determination, and she did not know why the decision was made. She submits that the respondent made the decision internally, upon its own consideration of matters it considered pertinent, and without consultation with, or regard for the applicant;
(b)    the respondent did not provide that applicant with any warning that the FWA would come to an end, against a background of the applicant having no cause to suspect that it would cease. The applicant says that she was denied any due process being followed by the respondent and denied procedural fairness. She was not able to address the proposed ending of the FWA, or given an opportunity to agitate that it should be maintained, and
(c)    the respondent did not provide the applicant with adequate time to make alternate arrangements so as to enable her to return to work, and no consideration was given to her circumstances. The applicant submits that the respondent’s written submissions do not suggest to the contrary.
The applicant responded to this letter with an email letter of her own on 3 November 2021, in which she says that she did not accept the findings of the review as she had not been asked to contribute any feedback, nor had she participated in any consultation at any stage of the review. The revue was therefore incomplete.
Ms King says in the letter that considering the flexible work arrangement provisions had been incorporated with the Local Government (State) Award for 17 years, the respondent had an obligation to also consult with her regarding the workplace change in accordance with Cl 41 of the Local Government State Award (2020).
Ms King had a meeting with Shelby and Ms Sharkey on 10 November 2021. Ms King was accompanied by her daughter-in-law, Veronica King, as a support person.

Meeting of 10 November 2021

The applicant refers to what occurred at that meeting at [64]-[75] of her statement dated 12 January 2023. She says that:
(a)    her request for information as to how the review was conducted was refused by Shelby, who sat there with her arms folded and said “I don’t have to give you that”;
(b)    Shelby told her that there had been consultation in the review on 20 October 2021, to which she (Ms King) responded that there was no consultation when Shelby hung up on her;
(c)    she advised Shelby of:
(i)her personal situation of caring for her mother and grandchildren, and
(ii)her perception that from the onset of the FWA it was on the basis that if after six months everything went well, it would continue permanently on a transition to retirement;
(d)    Shelby and Ms Sharkey were generally unfriendly during the meeting, and the meeting felt hostile in relation to the fact that they just would not tell her anything, acknowledging however that there were not any voices raised at the meeting;
(e)    as the meeting was going “round in circles” she took a break with her daughter-in-law Veronica King, and returned to the meeting to advise Shelby and Ms Sharkey that under the provisions of the award she would like to escalate the matter to the General Manager, and
(f)    at the conclusion of the meeting she felt very deflated and disappointed, and felt a lot of betrayal as the FWA had been approved by Noleen and Tim back in 2020, and she was not advised of any basis as to why the FWA could not continue.
On the evening of 10 November 2021 the applicant sent a “reasonably detailed” email to Shelby and Ms Sharkey in respect of the meeting. Although that email was said to be Annexure A to the statement dated 12 January 2023, it was not so annexed. However an excerpt of the email is set out at [61] in the statement of Shelby dated 16 May 2022.[40]
[40] Reply p 32.
Veronica King gives her version as to what occurred at the meeting on 10 November 2021 in her statement dated 4 January 2023.[41] She says relevantly:
(a)    from the beginning of the meeting she observed that Shelby and Ms Sharkey were dismissive in their tones and not genuinely interested in the meeting;
(b)    when the applicant asked Shelby about why the decision was made to cease the FWA, she responded with a general statement and cited something like ‘business operational reasons’. Shelby refused to share any further information or reasoning about what ‘business operational reasons’ were when asked by the applicant;
(c)    when she (Veronica King) saw that the applicant was becoming emotional and distressed given the lack of two way communication in the meeting, she intervened on behalf of the applicant if to ask they (Shelby and Ms Sharkey) could share more information about how the review was conducted and what factors were taken into consideration, and was then told bluntly by Shelby that as a support person she could not speak at the meeting;
(d)    a break was called, given that the applicant was becoming more distressed;
(e)    following the break, she and the applicant and re-entered the meeting to advise that the matter would be escalated in accordance with the escalation procedure, and
(f)    Ms Sharkey said something along the lines of ‘you can do as you wish’.
[41] ARD p 55.
Shelby gives her version of what took place in the meeting on 10 November 2021 from [53] in her statement dated 16 May 2022. She says that the meeting was serious but cordial, and all the attendees spoke to each other in a reasonable manner. This is confirmed by the applicant who says that there were no raised voices. Shelby says that the applicant at times during the meeting appeared displeased, cranky, red in the face and a bit shaky, and that she appeared to be angry rather than emotionally upset or distressed. Shelby says that due to the applicant’s demeanour she was conscious of speaking calmly and slowly as a means of trying to defuse the tone and take the heat out of the meeting.
Shelby says that essentially during the meeting she sought to explain to the applicant the reasons why the Council could no longer accommodate her FWA, in order to achieve the necessary improvement of the performance of the workers compensation function and to reduce the cost that the FWA was imposing on Council.
Shelby describes the meeting as quite brief and that at times Veronica King participating and advocating for Robyn. There was a then a break during which the applicant and Veronica King spoke privately. On return they advised that they wanted to escalate the matter to the General Manager and the meeting ended.
Shelby acknowledges that the applicant did mention some information in relation to her personal situation in terms of caring for her elderly mother, and the need for her to have two days a week off work.
Shelby finally mentions that the applicant’s assertions that there had not been any consultation with her, or any feedback obtained from her in relation to the review of the FWA were not true, particularly having regard to the meetings the applicant attended with her (Shelby) and Corey on 7 and 19 October 2021.
Ms Sharkey refers to the meeting at [30]-[42] of her statement dated 18 May 2022. She appears to give an incorrect date of the meeting at [30], saying that it was scheduled for 14 November 2021, but in that paragraph refers to the attendance of Veronica King as a support person.
Ms Sharkey says of the meeting that:
(a)    prior to the meeting she believes Shelby prepared notes and a discussion framework which she had reviewed with Sparle Helmore. During the meeting, Shelby led on the Council’s behalf;
(b)    Shelby covered the points of discussion in the discussion framework in relation to the applicant’s FWA and the reasons surrounding why Council decided that a continuation of her FWA could not be accommodated;
(c)    Shelby referenced specific instances of consultation she had with Ms King in October 2021 (as outlined in the discussion framework notes) regarding her role in relation to the injury management and workers compensation function;
(d)    Ms King put forward points as to why she didn’t agree with Council’s decision as outlined in the email she sent to Shelby on 3 November 2021. Ms Sharkey recalled that Veronica King seemed to have a legal background and had a copy of the Local Government Award with her;
(e)    Veronica was at times advocating for Ms King, and at one point Shelby said to Veronica King that her role at the meeting was to provide support and not advice or legal advice, and
(f)    the meeting did not go very long, essentially it was a stalemate as Council’s position regarding the applicant’s FWA remained unchanged.
Ms Sharkey recalls that Ms King briefly mentioned her personal circumstances during the meeting, and thinks that she mentioned sharing caring responsibilities for her mother with her sister.
Ms Sharkey says that from memory, regarding Ms King’s demeanour at the meeting, she seemed in the main composed but displeased.
The respondent submits that the evidence of Veronica King as to the “tone of Ms Lee and Ms Sharkey as being dismissive” at the meeting on 10 November 2021 is opinion evidence, and is not a fact about which a mere perception is relevant, given it bears on the s 11A defence. Absent Veronica King giving details about why she formed the perception she did, it is worthless, given the ease with which perceptions may be incorrect.
The respondent also submits that the evidence of Veronica King that what Shelby said about the change in the FWA namely, that it was due to operational reasons, being a ‘general statement’ is immaterial. It is suggestive that Ms King was advocating for the applicant rather than giving factual evidence. The respondent also submits that the evidence of Veronica King at [14] of her statement about Shelby’s demeanour during the meeting was a “gratuitous comment”, and further evidence that Veronica King was advocating for the applicant.
I do not accept the evidence of Veronica King in respect of the demeanour of Shelby, and the tone of Shelby and Ms Sharkey at the meeting as being dismissive. Veronica King had never met either person before the meeting. She was the daughter-in-law of the applicant, and attended the meeting to act as a support person only. The applicant herself says that there were not any raised voices at the meeting, although she does say that the meeting felt hostile. That hostility was because the applicant said that “they” (Shelby and Ms Sharkey) would not tell her anything. The evidence of Ms Sharkey in her statement dated 18 May 2022[42] is that Veronica King was at times advocating for the applicant and prompting her, which was commented upon by Ms Shelby. Ms Sharkey also says that the meeting did not go for very long. The evidence of Shelby as to the conduct of the meeting is at odds with the opinion of Veronica King in respect of the tone of the meeting and demeanour displayed. Shelby says at [53] of her statement dated 16 May 2022 that the tone of the meeting was serious but cordial, and all the attendees spoke to each other in a reasonable manner. Shelby conducted the meeting with the assistance of a discussion framework, reviewed by lawyers, the contents of which are set out at [51]-[52] of her statement.
[42] Reply p 44.
The evidence of Shelby as to the conduct of the meeting is in my view corroborated by Ms Sharkey.
Whilst I accept that the applicant was probably upset with what she was told, or not told, at the meeting, I do not draw any inference adverse to the respondent as to the way that the meeting of 10 November 2021 was conducted. In respect of the issue as to what the applicant was told, or should have been told or had knowledge of regarding the discontinuance of the FWA, either at or prior to the meeting of 10 November 2021, I note that the applicant had been in receipt of the letter from Shelley dated 3 November 2021, referred to above at [143]-[147]. This set out the grounds on which an employer may refuse a request on reasonable business grounds, including those at (a)-(e) in the letter. Shelley noted in the letter she had considered the applicant’s request, and also the reasonable needs and requirements of the business.
Shelley states at [23] of her statement dated 16 May 2023 that the applicant had been involved in meetings with her and Corey on 7 and 19 October 2021 during which they discussed the performance of the injury management and workers compensation function, and that immediate performance improvement of the function was required. The applicant does not refer in her evidence to what was discussed at these meetings.
I note also that the applicant was, by the time of the meeting on 10 November 2021, in possession of a letter from Tina Hay dated 19 July 2021, which she says she received on 20 October 2021. It is referred to at [39]-[40] of her statement dated 12 January 2021. In that letter Tina Hay states that the new working arrangement (that is, the FWA), will be reviewed prior to 22 October 2021 to determine its effectiveness and suitability to both parties and discuss working arrangements going forward. Ms King was however required to continue to complete a leave application form for the two days which she had nominated to take leave.

Meeting of 7 December 2021

This is the final disputed factual matter, referred to above at [38(e)], that the respondent submits needs to be determined which “will inform the s 11A defence”.
The applicant says that the meeting was initiated by Shelby to discuss ingoing arrangements in relation to her role. She says that Shelby kept the door open. Shelby recalls that the door was open, but notes that two staff members were in the branch on the day and the rest of the staff were working from home because of Covid arrangements.
When Ms King told Shelby, on the advice of her union, that she would be having a support person from the union attending the meeting, she says that Shelby said that a support person was not needed. Ms King says that Shelby led her “…to believe that it had nothing to do with my role and would be about my preferences moving forward.” She says that during the meeting her role was discussed and at one point she was asked by Shelby what she wanted. Ms King replied that she wanted to continue working three days per week as previously agreed. Shelby then said in a raised and hostile voice “that’s not going to happen.” When Shelby asked the same question again, she said exactly the same thing.
Ms King says she then left Shelby’s office feeling very intimidated by the attitude of Shelby. She felt violated that her role that was the subject of the grievance was being discussed, “…particularly with the door open as other staff members would be able to hear the conversation which was a breach of confidentiality.” Ms King then went back to her desk. She says that two work colleagues named Lomae and Blair could see that she was visibly upset and came over to her and asked if she was OK. “They knew I was having issues with Shelby and they said to me that they heard everything and could not believe the way I was spoken to by Shelby.” There is no evidence before the Commission from either Lomae or Blair.
This version of events contrasts with what Shelby says occurred. At [80] of her statement dated 16 May 2022 Shelby says:
“In any case as we both spoke in a normal and quiet manner during the meeting; no one would have been able to hear what we were saying due to the location of my office. Social distancing, air flow and maintaining distances was still important at that time, hence the door remained open.”
Shelby says at [81] of her statement that as far as she was concerned she thought that the meeting went well, and that after the meeting she popped into Ms Sharkey’s office to let her know that the meeting went well, and that it looked like “…we may be able to resolve the matter and that we were getting there.” She recalled “…Sam said ‘excellent’ and following that we began to build a new part-time role for Robyn.”
Ms Sharkey does not refer to this exchange with Shelby in her evidence. Nevertheless, the possibility of a resolution of the matter mentioned by Shelby is consistent with the part-time role that was offered to the applicant, discussed hereunder, and does not suggest any hostile tone in the meeting of 7 December 2021.
I do not accept that the meeting between the applicant and Shelby on 7 December 2021 was hostile in tone. I do not think that there is sufficient evidence to find that what occurred at the meeting was heard by the two employees of the respondent who were working at the respondent’s branch on the day. I do not accept the inference that Shelby deliberately left the door of her office open during the meeting.

Clause 41 of the former Local Government (State) Award

The applicant mentions this clause in her evidence, submitting that the Council had an obligation to consult with her regarding the change in the FWA in accordance with cl 41 of the former Local Government (State) Award. The respondent submits that it does not apply, and sets out that clause in its Submissions in Reply, as follows:
“41. Workplace Change
Deﬁnitions
(a) In this clause:
‘Signiﬁcant eﬀects’ include:
termination of employment; or
major changes in the composition, operation or size of the employer's workforce or in the skills required; or
the loss of or reduction in, job or promotion opportunities or job tenure; or the alteration of hours of work; or
the need for employees to be retrained or transferred to other work or locations; or job restructuring.
Provided that where the Award makes provision for the alteration of any of the matters referred to above such an alteration shall be deemed not to have signiﬁcant eﬀect.” (Emphasis added.)

The respondent submits that the former award made provision for the alteration of the applicant’s hours of work under the FWA in cl 23, so any proposed further alteration of the hours of work of the applicant pursuant to a proposed cessation of the FWA, is deemed not to have ‘significant effects’ and cl 41 therefore did not apply. Thus in this case the asserted cl 41 obligation of the employer to consult with the applicant about the proposed cessation of the FWA did not apply.
I accept this submission. In any event, in my view the whole of what happened in respect of the applicant’s FWA from about January 2021 onwards, and in particular from October 2021 until April 2022 when Ms King ceased working for the respondent, needs to be considered in determining whether the Council acted reasonably in respect of the defences raised by it pursuant to s 11A of the 1987 Act to the applicant’s claim.

Events subsequent to the meeting of 7 December 2021

The USU escalated the applicant’s grievance to the IRC at a point in time of which the applicant is not sure. It was eventually resolved before the IRC at a teleconference hearing on 5 May 2022, when the applicant entered into an agreement which involved the cessation of her employment and a monetary payout. The terms of the agreement are confidential.
The applicant says that on 21 February 2022 she saw a general practitioner, Dr Muzammel, reporting that she was suffering stress and anxiety due to what was happening at work. She was given a medical certificate for time off work from 22 to 25 February 2022.
The applicant gives evidence about her being removed from a particular workers compensation matter she was managing for the Council from January 2022 involving Vera Suli. The applicant says that she only found about the decision to remove her from the case by Ms Suli in late February 2022, and was subsequently informed by Ms Sharkey via email on about 1 March 2022 that she would have no further involvement in managing Ms Suli’s claim, and that it would be managed to completion by Lorraine Chesnee, the person working the two days a week that the applicant was not working. The applicant says that no reason was given why she was taken off Ms Suli’s claim, that this she was upset and caused her to have another “emotional meltdown.”
The applicant continued to work under the FWA, and in late February or early March 2022 received via email a letter dated 22 February 2022 from Shelby, relevant parts of which are set out at [17] of the applicant’s statement dated 12 January 2023. In that letter Shelby said that:
(a)    notwithstanding the decision reached, the Council had continued to consider the applicant’s request taking into account budget and operational commitments;
(b)    the Council was able to make an offer to transfer the applicant from the role of Injury Management and Wellbeing Officer to Injury Management and Wellbeing Support Officer, a part-time and direct appointment position, and
(c)    if the applicant wished to take up the opportunity, the transfer would be effective from 14 March 2022 and was anticipated to be for 12 months duration concluding on 12 March 2023.
The applicant says that there had been no consultation with her about this proposal and she had no idea it would be coming. Noting that the position would be at a reduced rate of pay and for a one year term only, it did not interest her. Ms King says that she felt angry and annoyed when she read the letter, did not want to accept it, and did not respond to the letter, although she thinks the union may have.
Shelby says in her statement that the USU advised on 8 March 2022 that the applicant would not be able to respond to the deadline of 10 March 2022. Shelby says that she was surprised that the applicant did not accept the job offer given it reflected the contents of what she (the applicant) stated in the meeting held on 7 December 2021.
The applicant says that at that time she was unsure of the outcome of her IRC grievance, had time off work in March and April 2022 with illness including work related stress, and because her lawyer was also ill, had to have the IRC hearing deferred. It was not until late March or early April 2022 that the applicant says that she saw a letter from Shelby dated 16 March 2022.
This letter was dated 16 March 2022 and is set out at [88] in Shelby’s statement dated 16 May 2022. After referring to Council’s letter to the applicant dated 22 February 2022 and to correspondence from the USU dated 8 March 2022 on Ms King’s behalf, the following appeared in the letter:
“As stated in Council’s letter, you are employed by Council to work 35 hours per week in the full-time position of Injury Management & Wellbeing Co-ordinator. Although Council agreed to trial an alteration of your work hours to 21 hours per week on a temporary basis, Council advised you on 3 November 2021 that you would be required to return to work ni a full-time capacity due to operational need. You subsequently lodged a grievance in accordance with the Award to which the General Manager responded on 24 November 2021, confirming the ;decision to conclude the trial and return you to full-time work.
More recently, acknowledging your preference to remain part time, Council offered you to transfer into the part-time role of Injury and Wellbeing Support Officer as outlined in Council’s letter. You have not accepted this offer to date.
Council has considered all available options but regrettably is unable to identify any redeployment opportunities that are suitable to you. Similarly, Council understands that you have not identified any suitable and available positions for re-deployment.
Council is satisfied that it has responded to the concerns raised in your grievance in accordance with the Grievance and Disputed Procedures set out in the Award.
In these circumstances, Council directs you to return to full-time hours in your position of Injury Management & Wellbeing Co-ordinator effective from Monday, 28 March 2022. Council considers this to be a lawful and reasonable direction and notes that any failure to comply may warrant disciplinary action against you.
Should you have any questions, please contact me to discuss.”
At [93]-[103] of her statement Shelby deals with what occurred at the IRC hearing on 5 May 2022 and the outcome thereof, details of which are confidential, a grievance lodged by four staff members in December 2021, changes that had occurred under her leadership since she commenced at the Council in order to drive improved performance throughout the branch, and also with allegations by the applicant in respect of allegedly being targeted by Shelby. Shelby then says at [104]:
“Following this to try and accommodate Robyn we then offered the alternative position which she did not accept, which I believe was due to her not wanting to take a pay cut. I note that it was only a relatively small reduction of around $109 per week.”
At [113] of her statement Shelby says that during her time that she had worked at the Council, on all occasions that she had spoken to, met with and interacted with Ms King she had not observes her to show any signs of upset, anxiety or depression. She does say however that at the meeting on 10 November 2021 Ms King did appear red faced and a bit shaky which as far as she could tell was due to anger and frustration rather than sadness and/or emotional distress.
The applicant says that after seeing the letter from Shelby dated 16 March 2022 she could not continue working any longer and on 11 April 2022 went and saw Dr Muzammel and obtained a State Insurance Regulatory Authority (SIRA) Certificate of Capacity which certified her as having no current work capacity for any work from 11 April 2022 to 9 May 2022. She provided that certificate to the Council and has been off work “on stress leave since 11 April 2022.”

Injury

The applicant notes in her submissions that the respondent does not put in issue injury arising out of or in the course of the applicant’s employment.
The applicant was independently medically assessed using Zoom by Dr Dunn, consultant psychiatrist, on 11 August 2022, who produced a report dated 31 August 2022.[43] Dr Dunn diagnosed that applicant as suffering from a Chronic Adjustment Disorder with anxiety and depression. He said of Ms King:
“While she may have brought some characterological vulnerabilities to the situation and objectively trying to establish just who offended who in the various workplace interactions, I have no doubt that the patient has a psychiatric diagnosis in the form of a Chronic Adjustment Disorder with anxiety and depression and that disorder is a direct result of what happened at work. In particular, the patient felt criticised, attacked and devalued.”
….
“…I am quite sure that the experiences in the workplace have been the main cause of her current emotional decompensation. Conversely, if she had not experienced these unpleasant interactions at work she would probably be quite emotionally well at present. I do not think, therefore, that her current distress can be attributed, simplistically, to earlier life stresses and traumas as the only cause of the current predicament.”
[43] ARD p 132.
Later in his report Dr Dunn expresses difficulty, as a psychiatrist, in answering the question of what would be considered “reasonable management action”. The respondent rightly points out that it is for the Commission, not a medical expert, to determine whether the employer’s actions with respect to one or more of the s 11A categories was reasonable in the circumstances.

Consideration

The applicant commenced working under the FWA in June 2020 following a discussions with her manager Noleen Jessup, the general manager, Ron Moore, and director Tim Butler. Mr Butler approved the applicant’s request to work three days a week, and that he was happy to trial the arrangement for six months. The applicant says that Tim Butler said that if everything went well the arrangement of the applicant working three days a week could continue and the Council would get in a support person to work the other two days.
The applicant says that from the very beginning the understanding that she had with Tim Butler, Noleen Jessup and Ron Moore was that if the FWA went well and there were no issues, it would become a permanent arrangement.
There was nothing in writing in respect of the FWA when it commenced in June 2020. The applicant says that it was a verbal agreement between herself, Ron Moore and Tim Butler.
Tim Butler has supplied a statement dated 3 March 2022[44] in which he says that it was agreed that the trial be in place for approximately six months (June to December 2020) during which time they would assess if Ms King’s role could be adequately maintained based on her reduced hours (three days a week) or, if that was not achievable or workable, whether they could successfully employ an additional part-time employee for two days a week to top up the hours to 35 per week between the two positions.
[44] ARD p 29.
Tim Butler left the Council on 30 October 2020 when the initial trial was still in place. He says that it was working successfully at the time of his departure and it was his intention to make it permanent arrangement at the end of the trial (December 2020 or January 2021).
Noleen Jessup has supplied a statement, undated,[45] confirming the commencement of the FWA in June 2020. She resigned from the Council in October 2020, but remained there on a part-time basis until the end of November 2020. Ms Jessup says in her statement:
“It is my belief that as a result of discussions with the General Manager, the then Director and myself it was always intended that Robyn would transition to retirement by entering into a part time working arrangement and continue with injury management and health and wellbeing duties.”
[45] ARD p 27.
In January 2021 the applicant had discussions with Tina Hay who at that time was working in the position of Acting Chief People Officer. This was in relation to the continuation of the FWA, and the Council agreed to continue the arrangement for six months. This agreement was in a letter dated 25 January 2021 from Tina Hay to the applicant which in part contained the following:
“This new working arrangement will be reviewed prior to 18 July 2021 to determine its effectiveness and suitability to both parties and discuss working arrangements going forward. Yor are required however to complete the leave application form for the two days in which you have nominated to take leave and provide this to payroll for processing.
You are requested to sign and return the attached document outlining the proposed working arrangements as a sign of your understanding and agreement.”
The applicant signed and returned the letter.
On 1 June 2021 the applicant sent an email to Tina Hay containing the following relevant passages:
“I would like to formally request that consideration be given to me reducing to three (3) days per week be made permanent.
…
This will provide me with flexibility to manage family and work responsibilities.
The arrangement has been trialling since January to date with no issues being identified.
Thank you in advance for your support with this request.”
There was a delay in the respondent in formalising this request. The applicant says that she was asking Tina Hay about it, and she was concerned because she was using up all of her leave, She says that Tins said not to worry about it, just give it a couple more months and they will extend it for another six months. At Tina Hay’s suggestion, Ms King commenced taking one day per week paid leave and one day unpaid leave.
In October 2021 the applicant received a letter from Tina Hay dated 19 July 2021 offering her an extension of the FWA position up to 22 October 2022. The following paragraph is included in this letter:
“This new working arrangement will be reviewed prior to 22 October 2021 to determine its effectiveness and suitability to both parties and discuss working arrangements going forward. You are required however to continue to complete a leave application form for the two days in which you have nominated to take leave and provide this to Payroll for processing.
If you have any questions in relation to this matter please do not hesitate to contact me.”
The applicant digitally signed this letter on 20 October 2021.
What happened thereafter is discussed at [125]-[179] and [183]-[193] above.
Tina Hay has provided a statement dated 15 September 2022.[46] She was Acting Manager People, Learning & Culture between November 2021 and September 2021.
[46] ARD p 30.
Tina Hay says that while the applicant was reporting to her during this time she did not have any concerns about her ability to perform the role and with the assistance of Lorraine, who was also a very experienced officer of the function as well. Tina Hay conformed that Ms king had always been a diligent and committed employee of the Council, and continued to deliver even during times of personal tragedy. Relevantly she also states:
“When Robyn proposed to make the part-time arrangement permanent, I personally did not have any issue with it however I appreciated that this decision would be made by the new Manager People, Learning and Culture when they were engaged” [sic]
I conclude that the applicant was always aware, from as early as the commencement of the FWA in June 2020, that it was a trial arrangement, and subject to review by the respondent. This is notwithstanding her apparent understanding from the early meetings with Tom Butler that it would become permanent. Mr Butler left the employ of the respondent on 30 October 2020. Ms King acknowledged in January 2021 that the arrangement would be reviewed prior to 18 July 2021 and her in request sent to Tina Hay on 1 June 2021. The arrangement was not reviewed until October 2021 after the Council, in its letter dated 19 July 2021, granted an extension of the FWA up to 22 October 2021. There is no explanation as to why the applicant did not receive this letter until October 2021, and if it was due to an oversight on the part of the Council, it is to be criticised for this, although there is no evidence that this was the case.
The process by which the Council informed the applicant that the FWA would not be made permanent commenced with the appointment of Shelby in October 2021, with telephone conferences on 7 and 19 October, one of which at least involved Corey Eaton of Premium Strategies, and the one-on-one meeting of 20 October 2021 with Shelby.
I have made findings of fact as to what occurred during the meetings and phone calls between 20 October 2021 and 7 December 2021. I do not find that the respondent, through its agents Shelby and Ms Sharkey, acted unreasonably during these interactions. Significantly, following the meeting between the applicant and Shelby on 7 December 2021, Shelby proposed a position for the applicant enabling her to work three days a week for twelve months from 14 March 2022 at a moderately reduced rate of pay. The applicant did not respond to this offer, apart from the message from the USU to the respondent advising that Ms King would not be in a position to respond to the letter dated 22 February 2022 by the deadline fixed by the respondent of 10 March 2022. Shelby says that she was surprised that the applicant did not accept the job offer given it reflected the contents of what she (the applicant) stated in the meeting held on 7 December 2021.
Thereafter the respondent issued to the applicant the letter dated 16 March 2022 referred to in [190] above, containing the threat of possible disciplinary action.

Authorities

After a review of relevant authorities, Acting President Bill Roche set out the following principles on the significance of a worker’s perceptions of actions of an employer in a claim based on psychological injury in AG v K at [52] (omitting case references):
“52. The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment;
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established;
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind;
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’, and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
I have made determinations on the factual matters claimed by the applicant to have caused her anxiety and upset, which are disputed by the respondent. In summary, I did not find the conduct of the respondent, through Shelby and Ms Sharkey over the period from early October 2021, was as claimed by the applicant and Veronica King and such as would cause the anxiety and upset claimed.
At [59] in Heggie Sackville AJA set out propositions consistent with both the statutory language and the authorities that have construed s 11A of the 1987 Act:
“(i)     A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)     Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)    An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)    The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)     Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)    The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (emphasis in judgement)

The reasonableness of the respondent’s action in threatening disciplinary action against the applicant in the letter of 16 March 2022 must be assessed. That is against the background of:
(a)    the FWA under which the applicant was working on a temporary basis from June 2020;
(b)    the requests of the applicant for the FWA to be made permanent;
(c)    the knowledge of the applicant of the trial nature of the FWA;
(d)    the requirements of the respondent in respect of its operational considerations including the cost of its injury management and workers compensation function;
(e)    the manner in which the respondent dealt with the applicant from October 2021 following the appointment of Shelly to the position of Manager, People, Learning and Culture on 5 October 2021;
(f)    the offer to the applicant of the part-time position in the letter of 22 February 2022, and
(g)    the applicant’s response to that offer.
The applicant was always aware that her employment pursuant to the FWA was on a trial basis and subject to review. This is acknowledged in the letter dated 21 January 2021 from Tina Hay to the applicant which Ms King signed on 28 January 2021, providing for a review of the arrangement prior to 18 July 2021 to determine its effectiveness and suitability to both parties.
The applicant was of the belief, based on her interactions with Tim Butler, that the FWA would be made permanent. However Mr Butler left the Council on 30 October 2020 whilst the FWA trial was still in place.
The review of the FWA did not occur prior to 18 July 2021, but the FWA was extended to 22 October 2021 by Tina Hay in a letter from her to the applicant dated 19 July 2021. That letter included the statement that the FWA would be reviewed prior to 22 October 2022. For reasons unexplained, the applicant did not see that letter until 20 October when she digitally signed the receipt thereof. Nevertheless, the review of the FWA commenced in early October 2021 with the appointment of Shelby.
Tina Hay says in her statement dated 15 September 2022 that she did not have any issue with Ms King’s proposal to make the part-time arrangement permanent, but appreciated that this decision would be made by the new Manager, People, Learning and Culture when engaged.
I have made findings on the manner in which the respondent, through Shelly and Ms Sharkey, dealt with the applicant from October 2021.
When considering the concept of “reasonable action”, the Commission is required to look at the end result and the manner in which it was effected. The question of whether the action is reasonable is one of fact involving an objective test and is not a matter of law.[47] The entire process must be looked at.
[47] Commissioner of Police v Minahan [2003] NSWCA 239.
A course of conduct may still be reasonable action, even if particular steps are not. The whole process must be considered, see Department of Education and Training v Sinclair,[48] a case involving the consideration of reasonable action with respect to discipline.
[48] [2005] NSWCA 465 at [97].
In this case, the whole process with respect to discipline commenced with the review of the FWA in October 2021, included the offer of a part-time position in the letter of 22 February 2022, and culminated with the threat if disciplinary action in the letter of 16 March 2022.
I find that the respondent’s actions in these circumstances were reasonable. The actions were in respect of both discipline and transfer. That is the transfer of the applicant from full-time work to working under the FWA in June 2020, the review thereof, and the transfer proposed by the respondent on 22 February 2022 to a part-time position for the 12 month period commencing 14 March 2022.
The applicant’s response to the letter of 16 March 2022 was that she could not continue working any longer, consulted Dr Muzamel, and obtained a Certificate of Capacity certifying no current capacity for any work from 11 April 2022 to 9 May 2022. The diagnosis in that certificate was “Anxiety and depression due to workplace issues with current manager and director.”[49] Dr Dunn’s assessment and diagnosis of the applicant is referred to at
[49] ARD p 268.
[195]-[196] above.
My finding is that the respondent has discharged the onus on it to show that the psychological injury suffered by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and discipline.
I do not find that the provision of employment benefits was the whole or predominant cause of the applicant’s psychological injury. Such provision was constituted by the applicant commencing to work pursuant to the FWA from June 2020, which she continued to do until she ceased work in March 2016.
Accordingly there will be an award for the respondent.

SUMMARY

The applicant suffered psychological injury arising out of or in the course of her employment deemed to have occurred on 11 April 2022.
The injury was caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and discipline.
Award for the respondent.

[2024] NSWPIC 642

18 November 2024